SCHMIDT v. BARTOLOTTA

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Supreme Court, Appellate Division, Fourth Department, New York.

Theresa M. SCHMIDT and Gary Schmidt, Plaintiffs-Respondents, v. Christopher BARTOLOTTA, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, PINE, AND LAWTON, JJ. Hurwitz & Fine, P.C., Buffalo (Alisa Ann Lukasiewicz of Counsel), for Defendant-Appellant. Watson, Bennett, Colligan, Johnson & Schechter, LLP, Cheektowaga (James F. Granville of Counsel), for Plaintiffs-Respondents.

 Plaintiffs commenced this action to recover damages for injuries sustained by Theresa M. Schmidt (plaintiff) in a motor vehicle accident.   Supreme Court properly denied defendant's motion pursuant to CPLR 4404(a) seeking to set aside the verdict as against the weight of the evidence, or in the alternative to reduce the award of damages for future pain and suffering.   With respect to whether plaintiff sustained a serious injury as defined in Insurance Law § 5102(d), we conclude that, although there was conflicting medical evidence, the evidence does not so preponderate in defendant's favor that the verdict could not have been reached upon any fair interpretation of the evidence (see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163;  McLoughlin v. Hamburg Cent. School Dist., 227 A.D.2d 951, 643 N.Y.S.2d 845, lv. denied 88 N.Y.2d 813, 649 N.Y.S.2d 380, 672 N.E.2d 606).   As a result of the motor vehicle accident, plaintiff sustained injuries to her back and neck and preexisting injuries to her back were aggravated.   The job duties of plaintiff were significantly modified to accommodate her pain, and she was no longer able to perform her household duties.   Furthermore, plaintiff presented evidence that she developed carpal tunnel syndrome as a result of the accident and that she suffers from debilitating headaches caused by the injury to her neck.   We therefore further conclude that the award of damages for future pain and suffering in the amount of $275,000 for a period of 30 years does not deviate materially from what would be reasonable compensation (see CPLR 5501[c];  Haick v. Castaldo [Appeal No. 1], 16 A.D.3d 1111, 790 N.Y.S.2d 910;  see generally Komforti v. New York City Tr. Auth., 292 A.D.2d 569, 569-570, 739 N.Y.S.2d 438;  cf. Deyo v. Laidlaw Tr., 285 A.D.2d 853, 854, 727 N.Y.S.2d 797;  Armbruster v. Buffalo China, 247 A.D.2d 880, 882, 668 N.Y.S.2d 802).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: